May 5, 2011

Looting and Criminal Sentencing in the Four Corners

More and more of the Four Corners antiquities cases are entering the sentencing phase, and I want to highlight two profoundly different reactions.

First, Kimberly Alderman (an Assistant Clinical Professor at the University of Wisconsin Law School) argues:

It’s readily apparent that federal prosecutors overcharged the cases in an attempt to justify the immense resources that went into the investigation. One has to wonder if that contributed to the suicide death of Dr. James Redd, who in his medical practice served less advantaged communities in Utah. . . . Illicit excavation is only one misuse of “sacred artifacts.” Another is to use them to justify a witchhunt that serves only government propaganda.

Receiving probation of three- and two- years and a fine of $2,000 and $300 respectively, Jeanne and Jericca Redd joined a number of other defendants who receive a mere slap on the wrist for their contribution to the destruction of cultural heritage and human remains.

In response, SAFE sent a letter (see full text below) to Judge Waddoups expressing our disappointment that the sentencing guidelines were not appropriately followed. Most importantly, that "the leniency shown to the Redds sends the message that such laws are unimportant or do not apply to the Four Corners region, and will encourage rather than deter looters." We did not receive a response from the Judge.

Stronger sentencing and custodial prison terms are poor measures for how seriously judges and the legal system take the looting of ancient sites. And placing the blame squarely on the shoulders of the sentencing Judge here misses the point I think. If you are really upset at the sentences (and I'm not sure you should be) blame should also be placed on the Federal Prosecutors. An axiom of criminal law every law student learns very early is that when defendants plead guilty, they will always receive a decreased sentence. Circumstances such as the personal circumstances of a defendant, their contriteness, and the violent or serious nature of the crime are also considered. One would be hard pressed to imagine a more sympathetic pair of defendants—a Mother and Daughter whose Father and Husband had committed suicide in the wake of the indictment. The U.S. Attorney's in this case pursued a strategy of seeking guilty pleas for many of the defendants, particularly as their witness (and two of the defendants) committed suicide.

These sentences are about the best that could be hoped for. These are not the first prosecutions in the area, but unquestionably these are exceedingly difficult crimes to prosecute and investigate for two reasons. First, the sites are remote and catching the looters in the criminal acts will always be a difficult and expensive proposition. Second, there is noting about the antiquities market which encourages giving the history of objects. Without a consistent way to adequately differentiate licit from illicit objects, the black market will continue to be profitable. Archaeologists and heritage advocates need to ask themselves a hard question: is prohibition working? We can point fingers at collectors and dealers, but this 'superindictment' in the Four Corners region is what enforcement will look like for the foreseeable future.